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2003 DIGILAW 1162 (PNJ)

Sanjay Kumar v. Union Of India

2003-08-21

S.S.GREWAL, S.S.NIJJAR

body2003
Judgment S. S. NIJJAR, J. 1. This judgment will dispose of Civil writ petition Nos.9071, 9072, 9073, 9074, 9075, 9076, 9077, 9078, 9079, 9080, 9081, 9082, 9083, 9084, 9085, 9086, 9087, 9117 and 10181 of 2002, as the questions of law raised are identical. Even the parties in all the cases are the same. 2. The petitioners had been appointed as workmen on different dates with respondent no.3. The petitioners were employed by private contractors engaged by the Food corporation of India (for short, the FCI) to provide security at the godowns of the FCI. The work being done by the petitioners was of permanent nature. Their services had been terminated on different dates after they completed 240 days as defined in Sec.25-B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ). The services of the petitioners had been terminated by the management without complying with the provisions of Sec.25-F of the Act. The workman raised a demand notice Annexure P.1 to Civil Writ Petition No.9071 of 2002. In that case it was pleaded by the petitioner that he had been working in the godown of the FCI since july, 1994 at a monthly salary of Rs.1080. There was no complaint against the work and conduct of the petitioner. Onjuly26, 1997, the services of the petitioner had been terminated without issuing any notice, charge-sheet, retrenchment compensation or enquiry. It was claimed that the respondent-FCI had violated sections 25-G and 25 -H of the Act. It was also claimed that the petitioner was wrongly being described as a contract worker by the FCI. The demand notice was examined by respondent no.1 and the following order was passed: "i am directed to refer to the Failure of conciliation Report No.8 (213)/97-ALF, dated June 8, 1999, from the Assistant labour Commissioner (C), Faridabad, received in this Ministry on June 5, 1999 on the above subject and to say that prima facie this Ministry does not consider this dispute fit for adjudication for the following reasons: as the workman was never engaged/appointed directly by Food corporation of India, there existed no employer-employee relationship between food Corporation of India management and the workman. The workman was employed by a security agency. " 3. The petitioners have filed the aforesaid writ petitions under Articles 226 and 227 of the constitution of India, challenging the impugned orders which are identical in nature. The workman was employed by a security agency. " 3. The petitioners have filed the aforesaid writ petitions under Articles 226 and 227 of the constitution of India, challenging the impugned orders which are identical in nature. They have also prayed for a writ in the nature of mandamus directing respondent No.1, to make a reference under the Industrial Disputes act to the Labour Court. It is submitted by Ms. Sanjivni Gupta, learned counsel for the petitioner that the points in issue are no longer res Integra as a number of writ petitions filed by similarly situated workmen have already been allowed by a Division Bench of this Court. She has made a reference to the decision rendered by this Court on July 18, 2001 in Civil writ Petition No.11612 of 2000. We have perused the record of the aforesaid writ petition. Ms. Sanjivni Gupta, apart/from the aforesaid decision, has also relied upon a judgment of the Supreme Court in the case of telco Convoy Drivers Mazdoor Sangh and another V/s. State of Bihar and others AIR 1989 sc 1565 : 1989 (3) SCC 271 : 1989-II-LLJ-558, to submit that it is not the jurisdiction of respondent No.1 to adjudicate upon merits of the reference sought by the workman. 4. On the other hand, Sri P. C. Goel, learned counsel for respondent No.1 has submitted that respondent No.1 is not precluded from making a prima facie examination of the merits to satisfy itself that an industrial dispute actually exists. Sri Goel has further pointed out that the writ petitions are liable to be dismissed as they have been filed after inordinate delay. According to the learned counsel, the services of the petitioner were terminated on July 26, 1997 and the order annexure P2 challenged in this writ petition was passed on October 29, 1999. The writ-petitions were filed on April 29, 2002, or thereafter. 5. Sri Hari Pal Verma, appearing for respondent No.3, has submitted that the workmen were employees of individual contractors who were providing security at the godowns of respondent No 3. The terms and conditions of employment were laid down in the agreement, dated January 3, 1986, which has been attached to the reply as Annexure r.3/1. Under this agreement it was provided clearly that the employees appointed by the ex-servicemen security services will remain the employees of the security agency. The terms and conditions of employment were laid down in the agreement, dated January 3, 1986, which has been attached to the reply as Annexure r.3/1. Under this agreement it was provided clearly that the employees appointed by the ex-servicemen security services will remain the employees of the security agency. It was further agreed that all liabilities arising out of industrial Disputes Act or other labour enactments will be borne by the security agency. The relevant agreement between the security service agency and respondent No.3 was as follows: " (iv) The security guards will be employees of the SSS and will not claim and will not be entitled to any Food Corporation of India benefits and will have no claim to that effect at any time. (vi) that all liabilities arising out of I. D. Act or other labour enactments will be borne by the security agency being principal employer. " 6. The learned counsel submitted that since the workmen had accepted the terms and conditions of the agreement voluntarily, they cannot now claim to be the employees of respondent No.3. He relied upon three judgments in support of his submissions which are as under: (1) Bombay Union of Journalists and others v. State of Bombay and another AIR 1964 sc 1617 : 1964-I-LLJ-351. (2)Bongaigaon Refinery and petrochemicals, Ltd. V/s. Samjuddin Ahmed 2001-II-LLJ-1149 (SC) (3) Secretary, Indian Tea Association V/s. Ajit kumar Barat and other 2000-I-LLJ-809 (SC) 7. We have considered the submissions made by the learned counsel for the parties. 8. The learned counsel for the petitioners has submitted that respondent No.1 has acted beyond jurisdiction in adjudicating upon the claim put forward by the workmen. The facts narrated above clearly demonstrate that respondent No.3 is seeking to deny the relationship of employer and employee on the basis of agreement, dated January 3, 1986. Perusal of this agreement clearly shows that it is a bilateral agreement between the security agency and respondent No.3. No workman is a party to the agreement. On the basis of this agreement, the whole liability of respondent no.3 under the Industrial Disputes Act is sought to be excluded. These are complicated questions of fact as well as law which can only be adjudicated upon by the Labour Court. Respondent No.1 could not have shut out the claim of the petitioners by going into the merits of the claim put forward by the petitioners. These are complicated questions of fact as well as law which can only be adjudicated upon by the Labour Court. Respondent No.1 could not have shut out the claim of the petitioners by going into the merits of the claim put forward by the petitioners. Counsel for the petitioners has rightly relied upon a judgment of Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh and another (supra ). In that case, the Supreme court has clearly held that the Government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended in terms of the agreement. The Government is not entitled to adjudicate upon the merits of the industrial dispute. In that case, a similar plea was urged which has been noticed at page 560 of 1989-II-LLJ-558 as under: " 12. It is, however, submitted on behalf of telco that unless there is relationship of employer and employees, or, in other words, unless those who are raising the disputes are workmen, there cannot be any existence of industrial dispute within the meaning of the term as defined in Section 2 (k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the government is whether the persons who are raising the dispute are workmen or not within the meaning of the definition as contained in Sec.2 (k) of the Act. " 9. The Supreme Court held that while exercising powers under Sec.10 (1) of the act, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function, and that in performing the administrative function the government cannot delve into the merits of the dispute and take on itself the determination of the Us, which would certainly be in excess of the power conferred on it by Sec.10 of the act. We are of the considered opinion that the aforesaid ratio of law is squarely applicable to the facts and circumstances of this case. The view expressed by the Supreme Court in the aforesaid case is not contrary to the view earlier expressed by the Supreme Court in Bombay union of Journalists case (supra ). We are of the considered opinion that the aforesaid ratio of law is squarely applicable to the facts and circumstances of this case. The view expressed by the Supreme Court in the aforesaid case is not contrary to the view earlier expressed by the Supreme Court in Bombay union of Journalists case (supra ). In that case, it is held that 1964-I-LLJ-351 at p.354: "it is true that if the dispute in question raises questions of law, the appropriate government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. " It is only thereafter that the Supreme Court has observed that it would not preclude the Government even from considering prima facie merits of a dispute. These observations are not applicable to the facts and circumstances of the present case. In the case of Secretary, Indian tea Association case (supra), the Supreme court while examining the legality of an order of the Government declining to make the reference, held that the order passed by the Government is administrative in nature, therefore, the High Court should not examine the material which was before the Government to support its conclusion, in the same manner, the High court would examine when a judicial or quasi judicial order is challenged. However, at the same time it was held that if it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the Court may consider the case for a writ of mandamus. In our opinion, in the present cases respondent No.1 has exceeded its jurisdiction in declining the reference on the ground that the petitioners are not employees of respondent No.3. In Bongaingan refinery and Petrochemicals Ltd. case (supra), the Supreme Court had come to the conclusion that the documentary evidence filed on behalf of the management clearly goes to show that the respondent-workman had never entered into an agreement with the management. Such is not the position here. In this case the legality or otherwise of the agreement, dated January 3, 1986, will have to be examined on the basis of the evidence led by the parties. Such is not the position here. In this case the legality or otherwise of the agreement, dated January 3, 1986, will have to be examined on the basis of the evidence led by the parties. It will also have to be seen as to whether an agreement reached between the contractor and the Food corporation of India can have any repercussions on the relationship of the workmen with the Food Corporation of India. It will also have to be seen as to whether the contractor could waive rights of the workmen under the Industrial Disputes Act. Such being the situation, it would not be possible to hold that respondent no.1 while passing the impugned order Annexure P2 has merely conducted a prima facie examination of the demands made by the workers. Therefore, we are unable to accept the submissions made by the learned counsel for the respondents. Apart from this, Ms. Sanjivni gupta, learned counsel for the petitioners is absolutely right in submitting that this Division bench is bound by the judgment passed by the division Bench of this Court in Civil Writ petition No.11612 of 2000 (FCI Workers union V/s. Union of India and others), decided on July 18, 2001. Sri Goel has argued that the writ petition is to be dismissed as it was filed at a belated stage. We are unable to agree with the submission made by the learned counsel. It has already been noticed that similarly situated workmen had filed writ petitions of which one was Civil Writ Petition No.11612 of 2000. This writ petition was decided on July 18, 2000. Therefore, the claim of the workmen was still being considered and adjudicated upon. We therefore, find that there is no such delay which would disentitle the petitioners from the relief claimed. 10 In view of the above, the writ petitions are allowed. The impugned orders annexed with the Writ petitions are quashed. Respondent No.1 is directed to make a reference to the Central Labour Court/ industrial Tribunal within a period of three months from the receipt of a certified copy of this order.